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Stamping a criminal’s ration book

There’s a firm of solicitors in Southern England with a particular, peculiar, set of policies: all of their clients go no comment in interview, all of their clients go not guilty at trial and all of those clients get the solicitor advocate (or employed barrister) they’re given.

The policy, albeit questionable, is profitable in the current system of criminal legal aid.

And we should never forget, that profitability is part of being a professional. It’s never at the forefront of any of the legally aided professional’s mind but… it’s part of the reason people signed up.

Indeed, I’m the first to admit, I’m a scaredy (fat) cat. I love criminal practice, but, I never let my practice being 100 % criminal work. And of the criminal work I do, I never let 100% be funded by legal aid.

I am a wuss.

And I won’t be a hypocrite

The media are waking up to the fact that the top guns of criminal law are not going to be firing as loudly, accurately or dramatically in future.

Of course getting the column inches these days means getting the ‘comments section’ with it. And they’re interesting reading, when you put the stupidity and ignorance of some people aside, there are a couple of interesting points that the commenting public raise:

1) Merits

2) Rationing

It would be hypocritical of me to simply say they’re stupid points. Why, because I do it myself, I ration my professional time, to try and protect my cash flow and income stream.

Merits

Before people cry out: there is a merits test in the criminal legal aid process, let me clarify it. (Or at least how I think it works) In short, if you face imprisonment, there’s a sticky point of law/cross-examination, or you won’t be able to understand a court case then you merit legal aid (providing you meet the means test).

This merits test seems to irk the general public. A lot of comments are directed at people having, ‘hopeless’ trials, or trials when they ‘know they are guilty.’

We’ll never be able to do anything about the latter, but what about the former. If I’ve said it once, I’ll say it a million times, clients can only be advised, they can never be forced into doing anything. And that equally applies to pleading not guilty, there’s been many a client who I think has a reasonable excuse/just cause/etc etc to plead not guilty who has pleaded guilty.

But what the public commentators say, is why should people be allowed to have ‘hopeless’ trials.

And in reality, it’s not a terrible point. The NHS does not carry out hopeless operations on people. And there are some hopeless trials, blatant CCTV, bizarre defences, non-existent alibis, every criminal practitioner has been there.

So why should we fund hopeless criminal trials?

In terms of other areas of legal aid, we won’t fund any old cause. For example, judicial review, in those cases Counsel has to justify why and how a claim will succeed before it is funded. Even once the High Court has granted permission (and thus indicated your claim has some merit) another advice still needs to be written to justify taking the claim further.

Many of these public commentators simply object to the waste of time and money that a hopeless trial takes. Let’s be honest too, there’s plenty of Judges too who say the same at the end of trials.

It would be cheaper to pay Counsel £250 everytime a case is sent to the Crown Court. And for that £250 that Counsel has to consider the evidence, having considered the evidence, Counsel indicates whether the Defendant has any chance of avoiding conviction. If so, the Defendant receives funding for an entire trial, if not, the Defendant simply has his representation paid for to get to a sentence hearing.

It would, quite probably save thousands of pounds.

But it’s not right.

In terms of principle, it doesn’t fit. It is an axiom of our society that the state must prove the citizen guilty before they can be punished. To support the principle of innocent until proven guilty, one must fund a Defendant through the entire process.

In terms of reality, it doesn’t fit. For every trial that read to be hopeless on the papers, it turned out for whatever reason that the Defendant was acquitted. The very point of a ‘trial’ is to push and prod the surface of the evidence and often when you dig down a little deeper you find things you don’t expect.

Rationing book

Criminal legal aid is of course rationed to a degree. You can’t get it for most traffic matters, nor can you get it for very minor charges. (Well… the idea is you can’t get it for minor matters but we all know the reality…)

Whether this degree of rationing is understood by the public at large? I’m not sure.

In any event, it’s not that type of rationing the public are after. Instead, it’s an idea that you’ve got a limited pot of legal aid in your lifetime. And once you’ve spent that pot, you’re out of luck.

Again, it’s an interesting idea which isn’t ridiculous. Some forms of NHS treatment one is only allowed to access a number of times. And, I’m pretty sure your state pension is partly calculated on how much national insurance you have put in over the years.

So…. there’s precedent, is there principle? One could, to an extent, base such a position on principle. The Criminal Justice system is based on a model of increasing intervention, minor offending one is conditionally discharged, more serious then community punishment, then imprisonment. Every sentence (bar financial penalties) has a rehabilitative aspect to it, in those circumstances, should we only give someone so many chances?

It’s difficult to answer I suppose.

The reality is one can’t ration access to justice. On the 11th occasion the Defendant will actually be innocent, will have been in the wrong place, or will have been fitted up and he will need a proper paid up defence.

Fez, I wear a fez now, fezzes are cool

Although I disagree with the public commentators on these various newspapers websites, they make me wonder.

People don’t necessarily object to our fees, nor to a Defendant being represented.

What they don’t like is a Defendant’s hand in the pot again and again, even when everything is stacked against him.

The flip side to that is in fact a desire from the public to deal with recidivists. The only way to deal with recidivists is to invest in them to break the cycle…. and who pays for that… well that’s a different story.

FTD

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“…all of their clients go no comment in interview, all of their clients go not guilty at trial…”

… and if they can’t collapse the case procedurally, most of their clients are convicted, I assume; I’ve rarely (if ever) seen a jury acquit where there is a case to answer but the defendant merely puts the prosecution to proof.